Collective Punishment Receives a Judicial Imprimatur

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In her recent book on the application of international humanitarian law by national courts, Sharon Weill describes the “apologist role” that is sometimes played by domestic judicial bodies, whereby decisions of courts serve to legitimise unlawful state policies. Last week’s judgment by the Israeli Supreme Court (sitting as the High Court of Justice) upholding the orders of a military commander to destroy and seal a number of Palestinian houses in the West Bank is an exemplary case in point.

The judgment in Qawasmeh et. significant for it provides judicial approval for the recent reinstatement of Israel’s punitive house demolition policy after a “decade-long hiatus”. The judges condone practices of collective punishment, despite the existence of a clear prohibition of such practices under international humanitarian law. The approval is not inadvertent, for the judgment shows that the Court is fully aware of the harm caused to persons other than the perpetrator by the practice of demolishing or sealing the houses of those responsible for criminal or hostile acts.

The background facts of the case are well-known, given that the kidnapping and murder of three Israeli teenagers in the West Bank in June 2014 served as the trigger for a violent escalation leading to ‘Operation Protective Edge’ in Gaza. The Israeli authorities identified the alleged perpetrators of this crime and ordered the demolition or sealing of their homes “in view of the need to deter others from the recurrence of similar actions” (although one residence was already destroyed once the individual was identified). At the time of the judgment, two of the suspects had not been arrested and the third had not yet been tried. Since then, the demolition and sealing orders have been carried out, with a statement by the Israeli military expressly referring to the Supreme Court’s affirmation of the orders and its rejection of the petitioners’ appeals.

The Court took heed of the petitioners argument that demolishing family homes as a penalty amounts to a prohibited act of collective punishment. Justice Danziger, delivering the judgment in Qawasmeh et. al., acknowledged the impact of measures taken pursuant to Regulation 119 of the Defence (Emergency) Regulation 1945:

…there is no dispute that the exercise of the authority under regulation 119 by way of seizure and demolition or sealing of residential homes severely violates the fundamental rights of the uninvolved inhabitants of said houses. Indeed the demolition or sealing of a house in which lives a person who has not sinned is in contrary [sic] with the right to own property, the right to dignity and even the right to housing.

He added that the Court had repeatedly held that “such demolition and sealing cannot be reconciled with concepts of justice and basic moral principles”. Nonetheless, this authority under the Regulations could be exercised if done so proportionately, if there was a demonstrable military need for deterrence and if such deterrence is served by the measure: “in the absence of a weighty deterring purpose the military commander may not exercise his authority to punish terrorists or as a means for collective punishment of uninvolved parties”. In other words, collective punishment is permitted if a military commander makes the argument that it acts as a deterrent, even though, as Justice Danziger acknowledges, “regulation 119 violates the rights of innocent parties”.

This is not a new justification; the Court held almost thirty years ago in Daghlas et. al. that the claimed deterrent effect of house demolitions “should naturally apply not only to the terrorist himself, but to those surrounding him, and certainly to family members living with him”. In Qawasmeh et. al.,the military commander’s orders were seen as proportionate, as an attempt was seemingly made to minimise harm, even though the actions “severely injure uninvolved parties, including young children, which is regretful”.

As to the determination of the need for such claimed deterrent measures, the Court was deferential to the views of the Israeli military, reflecting an ongoing trend that has been analysed in detail in the works of both Sharon Weill and David Kretzmer. “These evaluations”, Justice Danziger wrote, “are situated at the heart of the respondent’s expertise, and this court will not tend to interfere therewith other than in extraordinary cases and when weighty reasons are presented”. The Court referred to its ‘Awawdeh judgment of the previous month, where it similarly held that it would not second guess the authorities decisions regarding the need for or effectiveness of deterrent measures. It had also held that it was:

impossible to conduct a scientific research which would prove howmany terror attacks were prevented and how many human lives weresaved as a result of taking the measure of house demolition.

While such inconclusivity was read in favour of the respondent, it could also as easily have been interpreted to the benefit of the petitioners.

Nevertheless, the prohibition of collective punishment under international humanitarian law does not countenance any exceptions, whether it be for deterrence or any other reason. The rule in Article 33 of the Fourth Geneva Convention states clearly that “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation and terrorism are prohibited”. In Qawasmeh et. al.,Justice Sohlberg also acknowledged the collective punishment imposed by demolitions, admitting that “injuring a family – who committed no sin – in a manner which will cause him to remain without a roof over his head, contrary to fundamental principles, is troublesome”. However, this was explained away by making a comparison with the injury suffered by family members when a relative is imprisoned and, by arguing that for the purpose of deterrence, sealing or destroying homes “necessarily entails the impingement of innocent people”.

Israeli and Palestinian human rights organisations have consistently campaigned against punitive house demolitions as a violation of humanitarian law’s prohibition of collective punishment. The Israeli courts have not been receptive to these arguments; the Supreme Court began its substantive discussion in ‘Awawdehby stating that “all arguments raised in this petition have already been discussed and decided by this court in previous judgments”. These demolitions have not occurred in isolation, but have been a long-standing feature of the occupation, alongside frequent destruction of Palestinian property, including Bedouin villages built without permits, not to mention the widespread destruction that has been a feature of the large-scale military operations in Gaza over recent years.

Various other Israeli practices in the occupied territories have also been described as amounting to collective punishment. The ICRC considered the closure of Gaza itself as such, finding that “[t]he whole of Gaza’s civilian population is being punished for acts for which they bear no responsibility”. The United Nations Fact-Finding Mission on Gaza viewed conduct during ‘Operation Cast Lead’ as amounting to collective punishment (see paras 60, 74, 91, 1171, 1320, 1457, 1494). The Mission’s report notes that the imposition of collective penalties “amounts to measures of intimidation and terrorism”. It is not by accident that the rules against collective punishment, intimidation and terrorism appear within the same article of the Fourth Geneva Convention.

Israel is not the only party to an armed conflict to have resorted to collective punishment in recent times. Human Rights Watch reported in 2010 that the Pakistani army had engaged in forced evictions and the demolition of the homes of the relatives of suspected militants in the Swat Valley. However, it would seem to be the only contemporary example of where judicial approval has been so steadfastly forthcoming for a policy which breaches a customary rule of international humanitarian law.

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Ori says

August 21, 2014

Thank you for this post.
The connection between house demolitions and that of other Israeli policies seems inappropriate. For instance, the said "widespread destruction that has been a feature of the large-scale military operations in Gaza over recent years" is related to a different area of law – the conduct of hostilities – and is not prohibited under IHL if it is not excessive in relation to the military advantage. Another is the reference to the Gaza blockade as collective punishment: the reference to the 4th Geneva Convention is not apt as arguing that Gaza is occupied is irreconcilable with ¶173 to DRC v. Uganda, while the document cited was repudiated even by its main author.
Additionally, it seems incorrect to say that Justice Sohlberg "acknowledged the collective punishment imposed by demolitions". Sohlberg in fact opined that the measures are not punitive but rather involve collateral harm. While one could argue that this is merely an issue of language, it does pose the question whether the Israeli Supreme Court provided an "imprimatur" to collective punishment, or whether it narrowed the understanding of the term collective punishment – perhaps unsuccessfully.

Jordan says

August 22, 2014

Ori: word-play regarding "punishment" seems inapt here. The prohibition's basis is not hinged to whether or not there is an intent to "punish" but to the collective harm intended for persons who are not subject to being targeted, detained, and so forth (and whether or not they are "innocent"). Collective punishment is tribalistic (i.e., you hurt one of ours, we will hurt one of yours), contrary to the fundamental civilizing norm that guilt or responsibility must be personal, and contrary to IHL and human rights law (as noted, to human dignity, the right to property, etc.). The 1919 List of War Crimes under customary international law (not tied to any treaty like the GCs) contains a prohibition of collective penalties, so it is not tied to occupation or application of Geneva law.
The Court should have wondered not whether terrorist attacks were "prevented" by collective punishment (which would seem to be unrealistic), but how many terrorist attacks were spawned by collective punishment.

Jordan says

August 23, 2014

Furthermore, if a particular house is not being used to store military weapons, as a base for operations, as a place from which to fire weaponry, etc., it seems impossible to conclude that the house is a lawful "military objective" within the meaning of Article 52(2) of Geneva Protocol I (whether or not the house is in "occupied territory." The house, especially once controlled but also if merely destroyed from afar (after a "warning" to the residents), because of its "nature, location, purpose or use" could not be making "an effective contribution to military action" and its destruction could not be, "in the circumstances ruling at the time," offering "a definite military advantage." P.S. I have always had difficulty with the phrase "definite military advantage" in view of the difference between "military necessity" and the Nazi kiregsraison theory. The word "definite" might save it, however (and I note that some leave out the limiting word "definite").
Also, it would seem to be impossible to offer a justification in accordance with the test of "defnite military advantage" in general as well as in particular without claiming that there is some benefit in terms of reprisal theory, punishment or harm, intimidation or worse in order to "deter others."
Further, in no way does this type of violation of the laws of war and human rights law by individuals or as a matter of Israelu policy justify terroristic targetings by Hamas or use of rockets that involve indiscriminate death and destruction or any other violation of the laws of war or human rights law by Hamas.

Ori says

August 25, 2014

Thank you Jordan for you response. I certainly agree that collective punishment is not a question of intention, and that the concrete judgment itself has problems. Nevertheless, the semantics do bear relevance (for instance, relying on Nicaragua, it could be argued - albeit only to a certain extent - that the judgment actually reinforces the prohibition upon collective punishment), and accordingly the use of "imprimatur" is inappropriate.

Harlan says

August 29, 2014

RE: The reference to the Gaza blockade as collective punishment: the reference to the 4th Geneva Convention is not apt as arguing that Gaza is occupied is irreconcilable with ¶173 to DRC v. Uganda, while the document cited was repudiated even by its main author.

Goldstone's Washington Post article didn't mention, much less repudiate the findings regarding collective punishment in the form of the blockade or excessive destruction of property.

FYI, Article 33 of the Convention appears under the heading "Part III. Status and Treatment of Protected Persons,
Section I. Provisions common to the territories of the parties to the conflict and to occupied territories." So it can hardly be argued that its prohibitions only apply to cases involving an occupation. Likewise, "hostilities" are not outside the scope of the prohibitions contained in "Convention (IV) relative to the Protection of Civilian Persons in Time of War."